Com. v. Czerwonka, P.

• Court: Superior Court of Pennsylvania
• Decided: July 21, 2022
• Docket: 1794 EDA 2021
• Status: Unpublished

Opinion

J-S17034-33

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

PETER CZERWONKA

Appellant No. 1794 EDA 2021

Appeal from the Order Entered August 30, 2021 In the Court of Common Pleas of Montgomery County Criminal Division at No: CP-46-MD-0001264-2021

BEFORE: BOWES, J., LAZARUS, J. AND STABILE, J.

MEMORANDUM BY STABILE, J.: FILED JULY 21, 2022

Appellant, Peter Czerwonka, appeals from an order denying his appeal

from the Commonwealth’s disapproval of his private complaint against his

mother, Nora Czerwonka (“Mother”), pursuant to Pennsylvania Rule of

Criminal Procedure 506. We affirm.

On June 11, 2021, Appellant filed a private criminal complaint against

Mother alleging criminal trespass in violation of 18 Pa.C.S.A. § 3503(a)(1)(ii).

The complaint alleged that Mother

managed to break into [Appellant’s] locked car and criminally trespass without [his] permission using a spare key that [Mother] had happened to find that was still at the home where she lives. [Appellant] own[s] the car . . . [Mother] put inside some of [his] property that was stolen from [his] Grandmom’s . . . house in Philadelphia County.

Appellant continued that “[c]onsidering [Mother] has stolen before, [he]

cannot guarantee that other property that [he] had in [his] car was not stolen J-S17034-33

from [his] car.” Id. Appellant included emails from Mother with his complaint.

In one email, she wrote:

I would like to safely give you your car contents (2 plastic bags). There are 2 possible options: 1) I can lock your things in your car using the emergency spare car keys that we have here . . . 2) You could pick up your things at dad’s office at around 6 pm on a certain day when only Aunt Arlene is there. Which one of these is a good option for you.

Mother later informed Appellant via text message that “I put 3 bags of your

car contents in your car as per the email.” Appellant claimed the evidence

included a “willful admission that [Mother] committed crimes, and [Mother’s]

handwriting on the signs labeling the bags.” Id. Appellant also included a

photocopy of the certificate of title for a 2004 Buick Sedan registered to

Appellant.

On July 15, 2021, Assistant District Attorney Kelly Lloyd sent a letter to

Appellant along with a Notice and Record of Disapproval stating that his

request to initiate criminal charges against Mother was disapproved. ADA

Lloyd’s letter stated that Appellant’s request was disapproved because of the

“interest of justice” and because it “lack[ed] prosecutorial merit.”

On August 5, 2021, Appellant appealed the District Attorney’s decision

to the Court of Common Pleas of Montgomery County. On August 27, 2021,

the court held a hearing in which Appellant testified. On August 30, 2021, the

court affirmed the decision disapproving Appellant’s private criminal

complaint. Appellant filed a timely appeal to this Court, and both Appellant

and the trial court complied with Pa.R.A.P. 1925.

-2- J-S17034-33

Appellant raises the following issues in this appeal:

I. Is it an error of fact to state that “Complainant alleges Nora Czerwonka entered his car without his permission and placed his property inside the car” (R. 5a) versus that Nora Czerwonka broke into Appellant’s car, to which Appellant testified?

II. Is it an error of law to state that the charge alleged and applicable is 18 Pa.[C.S.A.] § 3503 (a.1.), essentially (i.), and not 18 Pa.[C.S.A.] § 3503 (a.1.ii.)?

III. Does the Attorney for the Commonwealth Kelly Lloyd’s decision not to prosecute (supposedly “[a]fter careful consideration of all the facts and circumstances surrounding this incident” [R. 6a]), despite knowing that the overwhelming amount of evidence (including admission to the crime [as well as another crime in Philadelphia County by email only (R. 15a-16a)] by the perpetrator in writing through an email on a password protected email account [R. 15a] and in writing through text messages on a most likely password protected cell phone [R. 14a] and what Appellant said concurring with the admissions, both factually and what he cited legally, in the original private criminal complaint, and what he clearly delineated after the decision not to prosecute [R. 113a-114a]) contradicted what the Attorney for the Commonwealth Kelly Lloyd said that Appellant said in her Summary of Facts and Probable Cause (namely “Complainant alleges Nora Czerwonka entered his car without his permission and placed his property inside the car” [R. 5a]), amount to bad faith prior to trial, considering that “bad faith” can be defined as “a dishonest belief” (Appendix F. Bad faith, Wex Legal Dictionary., p. i) and “an untrustworthy performance of duties” (Appendix F. Bad faith, Wex Legal Dictionary., p. i), and is therefore not within Appellant’s, Appellant’s grandmother’s, and the public interest?

IV. Is it an error of law and fact to state that an arbitrary decision is within prosecutorial discretion?

V. Is the ability to claim to prosecute or not prosecute someone based on an alleged claim, namely “Complainant alleges Nora Czerwonka entered his car without his permission and placed his property inside the car” (R. 5a), that can be proven that no one else actually ever said, which is a reversible error of fact, arbitrary

-3- J-S17034-33

and thus outside of prosecutorial discretion, without merit, and without precedent?

VI. Does the overwhelming amount of evidence/facts of the case, including admission to the crime by the perpetrator in writing through an email on a password protected email account (R. 15a) and in writing through text messages on a most likely password protected cell phone (R. 14a) and the handwriting of Nora Czerwonka in Appellant’s car (R. 5a) and the fact that Nora Czerwonka is already a self-admitted felon in Philadelphia County (R. 15a-16a), support the outcome of the Honorable Judge Hilles’s decision, which is not within the Appellant’s, Appellant’s grandmother’s, or the public interest?

VII. Since the Summary of Facts and Probable Cause (R. 5a) were not true and were proven false, making it an error of fact, are not the Reasons for Disapproval (R. 5a) raised off of the Summary of Facts and Probable Cause (R. 5a) effectively moot and need not to be discussed in order for a granting of the motion/petition for private criminal complaint-denial?

VIII. Is it an error of law to believe that the Equal Protection Clause of the Fourteenth Amendment (U.S. Const. Amend. XIV) has applied in Appellant’s case, where a judge and a prosecutor knowingly are denying the law to apply to Appellant or Peter Czerwonka’s grandmother?

Appellant’s Brief at 4-7.

The Rules of Criminal Procedure provide the following with regard to

private criminal complaints:

(A) When the affiant is not a law enforcement officer, the complaint shall be submitted to an attorney for the Commonwealth, who shall approve or disapprove it without unreasonable delay.

(B) If the attorney for the Commonwealth:

(1) approves the complaint, the attorney shall indicate this decision on the complaint form and transmit it to the issuing authority;

-4- J-S17034-33

(2) disapproves the complaint, the attorney shall state the reasons on the complaint form and return it to the affiant. Thereafter, the affiant may petition the court of common pleas for review of the decision.

Pa.R.Crim.P. 506.

A private criminal complaint must set forth a prima facie case of criminal

conduct. A.S. v. Kane, 145 A.3d 1167, 1168-69 (Pa. Super. 2016). “The

district attorney must investigate the allegations of a properly drafted

complaint to enable the exercise of his discretion concerning whether to

approve or disapprove the complaint.” Id. When a complaint has been

denied, the complainant may seek review in the Court of Common Pleas. Upon

review, the court must first identify whether the prosecutor’s denial was based

upon a legal evaluation of the complaint, or upon policy considerations. Id.

When the decision to deny the complaint is a legal one, the trial court conducts

a de novo review, whereas when the decision is based on policy

considerations, the trial court accords deference to the decision and should

not interfere absent bad faith, fraud, or unconstitutionality. Id.

Appellant raises several arguments urging us to order the

Commonwealth to prosecute his private criminal complaint against his mother.

For example, Appellant argues that the denial of his private criminal complaint

was both arbitrary and a denial of due process. We hold that the

Commonwealth correctly declined to prosecute Appellant’s complaint for the

simple reason that it failed to set forth a prima facie case of criminal conduct.

-5- J-S17034-33

Accordingly, we need not address Appellant’s claims of arbitrariness or lack of

due process.

Appellant accuses his mother of committing criminal trespass by

breaking into his vehicle. The criminal trespass statute provides in relevant

part that an individual commits an offense if, “knowing that he is not licensed

or privileged to do so,” he “breaks into” any “occupied structure.” 18

Pa.C.S.A. § 3503(a)(1)(ii). An “occupied structure” is “[a]ny structure, vehicle

or place adapted for overnight accommodation of persons, or for carrying on

business1 therein, whether or not a person is actually present.” 18 Pa.C.S.A.

§ 350I. “Breaking into” is “[t]o gain entry by force, breaking, intimidation,

unauthorized opening of locks, or through an opening not designed for human

access.” 18 Pa.C.S.A. § 3503(a)(3).

“To determine whether a structure is adapted for overnight

accommodation, a court considers the nature of the structure itself and its

intended use, and not whether the structure is in fact inhabited.”

Commonwealth v. James, 268 A.3d 461, 467 (Pa. Super. 2021). Most

decisions relating to whether a structure is adapted for overnight

accommodation concern buildings instead of cars. See, e.g., id. at 467-68

(in prosecution for discharge of firearm into occupied structure, garage

directly beneath complainant’s living quarters and under same roof as rest of

____________________________________________

1 Appellant did not argue, either below or in this Court, that his car was adapted for carrying on business.

-6- J-S17034-33

complainant’s home constituted occupied structure). The only decision we

can find concerning a vehicle is Commonwealth v. Mayer, 362 A.2d 407

(Pa. Super. 1976), in which we held in a burglary prosecution that a finished

but uninhabited mobile home trailer was an occupied structure because it was

adapted for overnight accommodation. Id. at 408 & n.3 (citing police chief’s

cursory testimony that there were “living accommodations”).

Here, the trial court held that Appellant failed to demonstrate that his

car was an occupied structure, because he failed to present any factual basis

that the car was adapted for overnight accommodation. Appellant contends

in his brief that he submitted a flash drive to the trial court which showed a

sleeping bag inside the car. The sleeping bag, he continues, demonstrates

that he adapted his car for overnight accommodation. It does not appear that

Appellant made this claim at the trial court level. We see nothing about a

sleeping bag in his private criminal complaint or in the transcript of the August

27, 2021 hearing. Nor does the record contain the flash drive that Appellant

refers to in his brief. Furthermore, we see no other evidence in the record

that supports the proposition that the car was adapted for overnight

accommodation. Thus, we agree with the trial court’s conclusion that there

was no factual foundation for the occupied structure element of criminal

trespass.

In addition, the trial court concluded, and we agree, that Appellant fails

to allege that his mother “broke into” his car. Appellant alleges that his

-7- J-S17034-33

mother “managed to break into my locked car ... using a spare key that [she]

happened to find that was still at the home where she lives.” Private Criminal

Complaint. In an email to Appellant, his mother proposed that she could “lock

[his] things in [his] car using the emergency spare car keys” she had in her

possession. Appellant provided no evidence or indication to suggest that his

mother was on notice that she lacked permission to do so. In fact, after his

mother informed him about placing his property in his car, Appellant

responded with questions about the property instead of with questions about

why she entered the car. This evidence establishes that Appellant’s mother’s

entry into the car was not unauthorized. She believed she was licensed to

enter Appellant’s vehicle because she possessed his emergency spare key,

and she had no indication from Appellant that she lacked permission to do so.

In short, the trial court properly denied Appellant’s appeal because he

failed to allege facts sufficient to establish a prima facie case of two elements

of criminal trespass, specifically, the elements that Appellant’s mother “broke

into” an “occupied structure.”

Order affirmed. Appellant’s second application to amend record denied.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/21/2022

-8-